Ignoring the risks that are presented by the defendant are not a way to prove your claim.
Plaintiff: Mary Magazine
Defendant: Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International
Plaintiff Claims: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm
Defendant Defenses: release
The FlowRide is a surfing simulator. It consists of a sloped surface with water shooting up to the top. The water flowing up is similar to a wave and used to learn to ride a wave or just have fun. You can find Flowriders in stores along the ocean and in this case on a cruise ship.
The plaintiff was a 59 year old attorney that signed up for the cruise. The cruise is a “Card Player Cruise.” These cruises are pushed to poker players. The plaintiff signed up for the cruise two weeks in advance and registered to participate in several activities: ice skating, rock climbing, zip lining and the FlowRider. In doing so she signed an electronic release.
The defendant argued the plaintiff was warned of the risks. There was a “Caution” sign was located in the FlowRider viewing area. There was also a five-minute video that played on television channels on the cruise. There was a list of warnings on the bulletin board.
The plaintiff watched another person on the FlowRider and watched that person fall. The plaintiff’s turn came on the FlowRider. She alternated with other riders and fell 10- to 12 times before falling and breaking her leg. The FlowRider lessons were videotaped including the plaintiff’s fall which broke her leg.
Summary of the case
The court refers to the plaintiff by her last name, Magazine and to the defendant Royal Caribbean Cruises as RCL.
Because the accident occurred on a ship, the standard of care is different. “…a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.”
The judge first throughout the negligent design claims. To be liable for negligent design a “defendant must have played some role in the design.” Because the defendant did not design the FlowRider that claim was thrown out. Also, the negligent maintenance claim was also thrown out.
A shipowner does have a duty to warn passengers of dangers which the shipowner knows or should know about “and which may not be apparent to a reasonable passenger”.
The duty to warn does not extend to dangers that are “open and obvious.” “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger.
Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.
The plaintiff argued that she did not see any of these warnings. However, the plaintiff also stated that even if she had seen the warnings “…she would not have heeded warnings anyway.” The court also stated that the risk of falling was an open and obvious risk in this case.
The court also looked at the requirements the plaintiff had to meet to prove her case. “Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.”
Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) that actually caused the plaintiff’s injury.
The plaintiff argued that it was not falling that caused her injury, but the specific way she fell, which was not identified as a risk of the activity. However, the court did not agree with the argument.
First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.
Second, the general risk of injury on the FlowRide is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway.
The court then stated, “Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious.”
The court then looked at the various other arguments of the plaintiff stating that the surface was not as the plaintiff had imagined that the medical issues suffered by the plaintiff were not related to the warnings and the FlowRider, and the Defendant had a duty to inform riders of other injuries participants had received. The court found all of these arguments of the plaintiff all failed because the risks were open and obvious.
Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference.
The court then reviewed the negligent instruction claim of the plaintiff. The plaintiff argued that how she was instructed, and the methods used to teach here lead to her injury.
While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.
The court found that the plaintiff may have a claim based on negligent instruction.
The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions.
The court then found that:
to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury.
However, the court found the plaintiff’s arguments to be thin and thought she would have a hard time proving those elements at trial.
So Now What?
If you have warning signs, videos, or information of the risks of your activity and are using a release, put in the release that by signing the release the signor states they have seen the warnings and videos and reviewed the website.
During registration for your activity, tell people to read the warnings, watch the videos and read all warning signs.
If you are using methods to teach or use a device that are not suggested by the manufacture or are different from the standard of care for the activity, this case suggests you should inform people of those differences.
What do you think? Leave a comment.
Copyright 2014 Recreation Law (720) Edit Law
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss #Authorrank
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Electronic releases are slowly gathering judicial precedent, if you can save paper and go electronic.
The defendant Royal Caribbean Cruises, Ltd had a ship, the Oasis of the Seas which had a FlowRider on it. A FlowRider is a wakeboard surfing device/pool/wave. The FlowRider was an amusement that was not part of the fees charged for the cruise, but required a separate sign up and fee payment by people wanting to ride the device.
The plaintiff rode the FlowRider for approximately 45 minutes, falling several times. On her last fall, she hit the rear wall and fractured her ankle. Prior to her injury, she had allegedly watched a safety video which was on the ship’s cabin TVs. She also watched other riders ride.
To ride the FlowRider the plaintiff had to read and sign an electronic release. The release was three pages long and designed so the readers had to scroll through all three of the pages before it could be signed. The plaintiff scrolled through all three pages and electronically signed the release. The plaintiff later argued she thought she was signing a room charge. (Room charges are three pages long?)
The plaintiff argued that admiralty law applied, which would prevent the use of the release and that the release was void based on equitable grounds. The decision was later overturned because the court found the admiralty statute was vague and the issue on whether the release worked in this case was an issue that should be litigated.
The admiralty law argument states that if admiralty law applies, releases cannot be used to defeat a claim. The legal relationship is similar to the common carrier‘s duty to protect passengers, because the control of the transportation is outside of the ability of the passenger to control, the common carrier owes the highest degree of care to the passengers. You are not driving; you are a passenger. You can’t slow down, turn or hit the break from the rear of the cabin.
For admiralty law to apply it must meet a two-prong test. The incident causing the harm:
(1) must have a potentially disruptive impact on maritime commerce, and
(2) the activity must bear a substantial relationship to traditional maritime activity.
The judge quickly denied that argument. He found that the cruise line industry would not be disrupted because of FlowRider injuries in the future, and the activity is purely recreational and has no relationship to navigation, piloting or shipping: “…as the FlowRider can hardly be considered essential functions of a common carrier…”
The court then looked at whether the release was valid on equitable grounds. The release used bold language to point out the different important sections. The bold language also indicated the nature and purpose of the document. One page explained the potential risks associated with the activity.
The court found it irrelevant that the plaintiff had not been provided a hard copy of the release and found the plaintiff’s attempt to characterize the release as a room charge as a failure to read the language “clearly presented to her.”
So Now What?
If you do operate in a legal environment where all or part of your activities may be held to a higher standard of care such as admiralty law or as a common carrier, you can use a release to eliminate claims for associated or side line activities. To do so you will need to identify the actual nature of the activity and why it is not associated with the higher degree of care needed by the other part of the activity.
What also proved instrumental to the court was the video which was available to everyone on the ship and which the plaintiff said she had watched when she signed the release. It is difficult to argue you did not understand the risk, when you agreed to watch a video which explained the exact risk which you are claiming is the cause of your injury.
The Waiver further provides that the passenger agrees not to use the FlowRider until she has watched a safety video. At the time of the alleged incident, the FlowRider safety video was in circulation on the stateroom channel, which is available to all passengers on their cabin TVs.
Another factor the court found important was the fact that the release could not be signed without scrolling through all three of the electronic pages.
The Waiver is three pages long and is designed so that passengers must scroll through all of its language before execution; otherwise it is simply impossible to execute the Waiver.
The issue that the release was electronic was never brought up.
Also of importance and pointed out by the court several times was the fact the plaintiff had watched other riders on the FlowRider and had watched them fall as well as having ridden the FlowRider for 40 minutes before suffering her only injury. It is difficult to argue you did not assume the risk when you clearly saw then experienced the risk.
Even though the release was held effective to stop the suit, the judge pointed out the assumption of risk issues and the fact the injury the plaintiff claimed was pointed out both in the wavier and in the video.
· Electronic Releases are accepted and used.
· Include the risks in your release as well as the necessary legal language
· Make sure the important sections are not hidden, but specifically pointed out to the participant.
· If you can, and you should, have the participant watch a video of the risks and acknowledge that they watched the video in the release.
· Be able to prove other issues or facts that support the fact the participant knew and understood the risks of the activity.
However this decision was overturned in Johnson v. Royal Caribbean Cruises, Ltd, 449 Fed. Appx. 846; 2011 U.S. App. LEXIS 25240 because of the lack of clarity in the US Admiralty Statutes. The basis for overturning the decision was:
(1) the waiver was clearly a contract with a provision that limited the liability of the owner for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents,
(2) the cruise ship owner undoubtedly was the owner of a vessel transporting passengers between a port in the United States and a port in a foreign country, and
(3) the statute contained no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found.
The court did not overturn the issue of whether the electronic part of the waiver was at issue.
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